However, in exceptional circumstances, without prejudice letters and other such exchanges can be used in legal proceedings. So, if your employer raises an issue with you in a without prejudice discussion which could breach trust and confidence, you cannot use this against them.
You can’t use anything that’s written or spoken about under the protection of without prejudice to build your case, or as a reason for your resignation, except in specific circumstances (see below). įor example, you can point out to the judge that you wrote an open letter to your employer requesting copies of your HR file, but no response was ever forthcoming, therefore they must be hiding something. During an employment tribunal case, you might request the disclosure of vital evidence or contact details for a witness.Įach of the foregoing examples would be open.Īll open correspondence can be referred to in front of a judge.You might write a letter to your employer resigning from your job, or raising a grievance.
‘Open’ communications mean any email, letter, phone call or meeting which doesn’t have without prejudice protection. What’s the difference between ‘open’ and ‘without prejudice’? Open communications: So, if you wished to initiate negotiations with your employer, a sound approach would be for you to send them such a letter setting out the reasons for wishing to negotiate and the terms on which you are willing to settle. That’s because it is a big step for an employee to open negotiations and it’s therefore usually better for you to set out the issues on paper in a without prejudice letter, rather than verbally. It is less common for an employee to ask for a without prejudice meeting or phone call. It will also sometimes outline the reasons for the offer and the consequences of not accepting (for example, you will commence a performance procedure, or there will be a redundancy exercise). The letter will set out the details of their offer. They will often then hand you a letter marked ‘without prejudice’. Your employer will then set out the reasons for the discussion and their proposal for a financial settlement in return for the termination of your employment. Generally, if your employer wishes to open negotiations about terminating your contract, they will either call you to a without prejudice meeting or ask in a meeting if you can speak on a without prejudice basis.
#Without prejudice gameshow how to#
See our range of letter templates and examples for how to present relevant correspondence and the kinds of disputes that you would use this protection for. It is not enough to just talk about the merits of the case and just say the words ‘without prejudice’ as it is likely in that scenario that the protection would not apply.
There needs to be a genuine attempt to settle the dispute out of court, for example, an offer of an amount of money to settle. (See our guide on such exchanges in meetings and conversations at work.) If it is a verbal exchange, then you or your employer need clearly to say ‘do you mind if we speak without prejudice’ or words to that effect. If it is a written document, then it needs to be clearly marked with the words ‘without prejudice’, or ‘without prejudice and subject to contract’. The main requirements for making a communication or settlement agreement document ‘without prejudice’ are as follows: Requirements for a without prejudice communication In either case, you can usually assume that, if one of the parties wants to start negotiations on a without prejudice basis, then it will qualify as being a dispute between the parties.įor your purposes in negotiating a settlement agreement, it is highly likely that there already is a dispute and therefore it’s safe to assume that you or your employer can commence without prejudice communications. So, let’s say that you have a grievance against your employer (no matter what it may be about), or that your employer has what they think is a genuine issue with, say, your performance. There has to be a dispute between the parties in order to qualify.
So, you wouldn’t say you’d accept a £7,500 settlement if you thought that the judge would find out about it because you’d be telling the judge that your claim was worth £10,000. If this protection was removed, then no one would make any offers. In this way, taxpayers’ money could be saved by cutting down on the number of disputes which ended up in court.īecause the parties involved in a legal dispute know that without prejudice offers can’t be used as evidence of guilt in court, they feel safe in making dispute settlement offers. Without prejudice is a tool originally introduced into English law to make it easier to achieve out-of-court settlement agreements. Why do people in a dispute need without prejudice?
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